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3rd mediation set in W.Va. coal slurry case

For the third time, two judges will try to settle a long-running lawsuit that claims Massey Energy Co. and one of its subsidiaries poisoned hundreds of drinking water wells in southern West Virginia with coal slurry.

The state's Mass Litigation Panel is handling the case against Massey and subsidiary Rawl Sales & Processing, both of which are now owned by Virginia-based Alpha Natural Resources.

Judges Derek Swope and Alan Moats have ordered lead attorneys for both sides to meet July 25-26 in Charleston to discuss a possible deal and avoid the series of trials set to begin Aug. 1 in Wheeling."We are routinely open to discussions or a resolution that would help avoid protracted litigation,'' Alpha spokesman Ted Pile said Monday. The company declined further comment. 

While the mediation efforts continue, Ohio County Circuit Judge James Mazzone is preparing for trial with the help of Judges John Hutchinson and Jay Hoke.

Court documents show both sides tried to delay the start of the trial, filing a joint motion to extend the deadline for evidence collection until Nov. 30 and proposing a new trial date of June 18, 2012. Mazzone denied that motion last month.

More than 700 current and former residents of Rawl, Lick Creek, Sprigg and Merrimac claim that Massey and Rawl contaminated their water supplies by pumping 1.4 billion gallons of toxic coal slurry into worked-out underground mines between 1978 and 1987.

Slurry is a byproduct of washing coal to make it burn more cleanly. The residents say that's what turned their well water varying shades of red, brown and black. For decades, coal companies in Appalachia have injected slurry into worked-out mines as a cheap alternative to dams and other systems that can safely store or treat it. The industry claims underground injection is safe, but critics say slurry migrates through natural and man-made cracks in the earth.

Massey has denied its Mingo County operations harmed anyone.Although the plaintiffs are now mostly served by a public water system, they say chronic exposure to metals and chemicals in the slurry are to blame for birth defects, developmental disabilities and a range of ailments. 

In February, Massey agreed to create a medical monitoring fund to provide health screenings for hundreds of plaintiffs. That essentially makes the pending trial a series of personal injury and property damage cases.Neither side has revealed how much Massey is putting into the fund. Alpha also declined to release the amount. A June 30 court order says mediation discussions, "including any resolution or settlement,'' must remain confidential. 

The judges would begin the trials by hearing one case each from seven categories distinguished by illness: cancer or renal failure; cognitive impairment such as attention-deficit disorder; colon or kidney problems; leukemia, spina bifida or pancreatitis; cysts, boils or internal ulcers; gallbladder problems; and chronic diarrhea, rashes or other so-called "sentinel symptoms'' of exposure to contaminated water. Each trial would play out in two phases. The first would determine Massey's liability and whether the plaintiffs are entitled to punitive damages, or those intended to deter a defendant's future bad conduct. The second phase would determine the amount of compensatory and punitive damages.


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